Harmon, P. v. Corky's Pest Control ( 2020 )

J-S35004-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PAUL HARMON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CORKY’S PEST CONTROL, INC. :
:
Appellant : No. 65 EDA 2020
Appeal from the Order Entered October 25, 2019
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2019-5790
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 13, 2020
Corky’s Pest Control, Inc. (“CPCI”) appeals from the order that required
its insurer, the Philadelphia Insurance Company (“PIC”), to appear for a
deposition and produce all non-privileged documents in its file to Appellee Paul
Harmon (“Mr. Harmon”). In this Court, Mr. Harmon filed multiple motions to
quash the appeal. We agree with Mr. Harmon that the trial court’s order is
interlocutory and therefore quash the appeal.
Mr. Harmon filed an action in San Diego, California alleging that he
sustained damages to his home as a result of CPCI’s pest remediation
services. In furtherance of his claims, Mr. Harmon attempted to obtain PIC’s
investigation file by serving subpoenas at PIC offices in California. Per
instructions he received from PIC, Mr. Harman filed in the Court of Common
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* Retired Senior Judge assigned to the Superior Court.
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Pleas of Montgomery County a praecipe for issuance of a subpoena pursuant
to the Uniform Interstate Deposition and Discovery Act (“UIDDA”). See 42
Pa.C.S. §§ 5331-37. The subpoena sought items such as witness statements,
witness contact information, phone logs, and documents sent to or from CPCI.
See Praecipe, 3/25/19, at 9. CPCI filed an objection, baldly invoking “attorney
client privilege; and/or . . . work product doctrine,” as to all documents. It
did not identify any particular documents or classes of documents that were
attorney-client privileged or work-product protected, nor did it claim that
California law was applicable to resolution of the objection. See Objection,
4/30/19, at 1. Various motions filed by the parties were exchanged. CPCI
eventually asserted that California law governed, and offered a vague
discussion of the UIDDA, but offered no specifics as to why any of the
requested information was not discoverable.
On October 25, 2019, the trial court concluded “that issues of privilege
or of discoverability under UIDDA or California [law] had not been properly
raised or preserved,” and entered an order directing PIC to appear for a
deposition and “have available all of the non-privileged documentation in
[its] investigation file.” Trial Court Opinion, 1/13/20, at 7 (internal quotation
marks and some emphasis omitted). On November 4, 2019, CPCI filed a
notice of appeal from the October 25, 2019 order. Thereafter, both CPCI and
the trial court complied with Pa.R.A.P. 1925.
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In this Court, Mr. Harmon filed an application to quash, contending that
this appeal is interlocutory and unappealable, and averring that it was taken
in bad faith to delay the California case. CPCI responded, asserting that the
order was an immediately-appealable collateral order and denying any lack of
good faith on its part. This Court denied the application without prejudice for
Mr. Harmon to raise the issue in his brief. After obtaining an extension of
time, Mr. Harmon filed both a brief addressing the merits of the issue raised
by CPCI and a second application to quash. This Court again denied the
application without prejudice to raise the issue with the assigned panel.
Thereafter, Mr. Harmon filed a third application to quash.
Accordingly, we begin by considering whether we have jurisdiction to
adjudicate the substance of this appeal. This Court has observed that “most
discovery orders are deemed interlocutory and not immediately appealable
because they do not dispose of the litigation.” Veloric v. Doe, 123 A.3d 781,
784 (Pa.Super. 2015) (cleaned up). However, “[a]n appeal may be taken as
of right from a collateral order of a trial court[.]” Pa.R.A.P. 313(a). To qualify
as collateral, (1) the order must be “separable from and collateral to the main
cause of action,” (2) “the right involved [must be] too important to be denied
review,” and (3) the claim must “irreparably lost” if review is postponed until
the entry of a final order. Pa.R.A.P. 313(b). “Rule 313 must be interpreted
narrowly, and each of the above prongs must be clearly present for an order
to be considered collateral.” Red Vision Sys., Inc. v. Nat'l Real Estate
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Info. Servs., L.P., 108 A.3d 54, 58 (Pa.Super. 2015) (internal quotation
marks omitted).
This Court has held repeatedly that we have jurisdiction under Rule 313
if the appeal is “from a discovery order requiring the production of documents
where there is a colorable claim of attorney-client privilege which made
appellate review proper at [that] stage of the proceeding.” Brown v.
Greyhound Lines, Inc., 142 A.3d 1, 7 (Pa.Super. 2016) (internal quotation
marks omitted). See also Yocabet v. UPMC Presbyterian, 119 A.3d 1012,
1016 n.1 (Pa.Super. 2015) (collecting cases in which jurisdiction under Rule
313 was found where a party was “ordered to produce [to the opposing
party] materials purportedly subject to a privilege” (emphasis added)).
Applying these principles to the case sub judice, it is clear that the trial
court’s October 25, 2019 order is not appealable as a collateral order. As the
trial court explained:
The order . . . made no final determination as to a right too
important to be denied review that would be irreparably lost if
review were postponed until after final judgment. The order
denied no claim of privilege raised by [CPCI]—not that [CPCI] ever
raised any specific claim of privilege tied to any specific piece or
category of information that [Mr. Harmon’s] subpoena sought.
The order specifically limited its directive to the insurer to produce
information to “non-privileged documentation.” Had [CPCI] or
[PIC] decided to withhold any information under a claim of
privilege and [Mr. Harmon] disagreed, the parties could have
brought the matter back to this court by motion to determine
whether privilege existed as to that particular information under
whatever state’s laws the court found applicable. [CPCI’s] claims
of privilege stood on the same footing and were no more
compromised after entry of the court’s order than prior to its
entry.
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Trial Court Opinion, 1/13/20, at 12 (citation and unnecessary capitalization
omitted).
We fully agree with the trial court’s analysis. At this juncture, CPCI has
not made more than a speculative blanket claim of privilege. Most
importantly, the trial court’s October 25, 2019 order did not require the
production of any privileged materials, and CPCI’s right to assert privilege as
to any particular document or class of documents has not been extinguished.1
Hence, this is not an appeal from a collateral order, but one from an
unappealable interlocutory order. Accord Gunn v. Auto. Ins. Co. of
Hartford, Connecticut, 971 A.2d 505, 511-12 (Pa.Super. 2009) (holding
order was not immediately appealable pursuant to Rule 313 as a collateral
order where the appellant “raised only a generalized concern” regarding “the
potential disclosure of possibly privileged information” and the appellant would
have the opportunity to properly raise claims of privilege when they ceased to
be speculative). Accordingly, we grant Mr. Harmon’s third application to
quash.2
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1 Since the trial court did not actually overrule any claim of privilege and CPCI
may return to the court to properly raise privilege under California or
Pennsylvania law upon compliance with the October 25, 2019 order, we reject
CPCI’s alternative argument that the order was appealable as of right pursuant
to Pa.R.A.P. 341 as a final order. See CPCI’s brief at 18-19.
2 Mr. Harmon’s motion also requests entry of “sanctions and financial
reimbursement as this Court sees fit.” Appellee’s Third Application to Quash
Appeal at 21. We decline to grant any such award.
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Appellee’s Third Application to Quash Appeal Granted. Case remanded
with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/20
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